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SPBILF 2019. Evidentiary Privileges in International Courts and Tribunals

15 May 2019
Discussion session

Event Description

On May 15, 2019, within the frames of the St. Petersburg International Legal Forum (SPBILF), the International and Comparative Law Research Center organized a discussion session on Evidentiary Privileges in International Courts and Tribunals. 

The topic of the discussion is of both theoretical and practical importance. It is particularly relevant in view of the increasing number of disputes involving the Russian Federation. Participants of the discussion touched upon various aspects related to evidentiary privileges in international courts and tribunals.

Roman Khodykin, moderator of the session, gave an introductory speech and talked in general about the existing types of evidentiary privileges, as well as nature of their occurrence. Being a human right specialist, Marie-Benedict Dembour in her presentation focused on issues of burden of proof and adverse inferences in relation to human rights disputes in regional human rights courts. Having extensive experience in international disputes both as a judge/arbitrator and as a consultant to the parties, with a view to basic principles of international process Tullio Treves raised several questions related to document production in State-to-State proceedings in the International Court of Justice and the International Tribunal for the Law of the Sea. In continuation of the discussion Antoine Ollivier elaborated more specifically on practice of the International Court of Justice, in particular, the case of Timor-Leste v. Australia, considering the right of States to the privacy of its interactions with legal consultants (legal professional privilege). Basing analysis on the WTO dispute resolution practice, Louise Wichmann talked about approach of the Dispute Resolution Body towards lawyer-client privilege, confidentiality of parties’ preliminary consultations, including terms of a settlement offer, as well as towards privilege against the use of official statements made by State, which might be contrary to its interests, in resolution of disputes. Summing up the discussion, Sergey Usoskin focused on the question of whether there are general principles for application of the institute of lawyer-client privilege in international courts and tribunals.  

Video of the discussion session is available on the SPBILF website

Presentations were made by

Roman Khodykin (moderator)
Partner at Bryan Cave Leighton Paisner LLP, Ph.D. in Law, Visiting Professor at Queen Mary University of London, specializes within the sphere of arbitration and has extensive experience in national and cross-border matters, including shareholder and energy disputes
Marie-Benedicte Dembour
Professor of Law and Anthropology at the University of Brighton (Great Britain), leader of the research project aimed to examine the rules and practices governing the issue of evidence in the regional human rights courts
Louise Wichmann Madsen
Dispute Settlement Lawyer at the Legal Affairs Division of the World Trade Organization, provides legal assistance to panels consisting ad hoc appointed judges in dispute settlement proceedings between member states
Antoine Ollivier
Legal Officer in the Registry of the International Court of Justice. From 2012 to 2019, he served as Special Assistant to the Registrar of the Court. He previously worked as a Legal Officer in the Directorate of Legal Affairs in the French Ministry of Foreign Affairs and as Temporary Lecturer and Research Assistant at the University of Paris X-Nanterre (Centre de droit international de Nanterre, CEDIN)
Tullio Treves
Emeritus Professor of the State University of Milano, previously judge of the International Tribunal for the Law of the Sea (1996–2011), acts as a counsel of different states in international courts and tribunals, consultant to various governments and international organizations, member of the Curatorium of The Hague Academy of International Law since 2010
Sergey Usoskin
External expert of the International and Comparative Law Research Center, deals with all types of international disputes and represents clients in international commercial arbitration, in connection with proceedings in foreign jurisdictions, as well as in international courts, including the International Court of Justice

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